Edna Miller, Et Ux. v. Arizona Chemical Co., Inc.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-1139

EDNA MILLER, ET UX.

VERSUS

ARIZONA CHEMICAL CO., INC., ET AL.

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APPEAL FROM THE
THIRTY-THIRD JUDICIAL DISTRICT COURT
PARISH OF ALLEN, NO. C-2000-698
HONORABLE PATRICIA C. COLE, DISTRICT JUDGE

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OSWALD A. DECUIR
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, and Oswald A. Decuir
and Elizabeth A. Pickett, Judges.

AFFIRMED.

Michael A. Chernekoff
Amy C. Cowley
Jones, Walker, Waechter, Poitevent,
Carrère & Denègre, L.L.P.
201 St. Charles Ave., 50th Fl.
New Orleans, LA 70170
(504) 582-8264
Counsel for Defendants/Appellees:
Timothy J. Dempsey
Arizona Chemical Company, Inc.

Errol David Deshotels
Deshotels, Mouser & Deshotels
317 W. 6th Avenue
Oberlin, LA 70655
(337) 639-4309
Counsel for Plaintiffs/Appellants:
Bruce Miller
Edna Miller

Raleigh Newman
Donald McKnight
Attorneys at Law
1830 Hodges Street
Lake Charles, LA 70601
(337) 439-5788
Counsel for Plaintiffs/Appellants:
Bruce Miller
Edna Miller

Michael Bruce Holmes
Attorney at Law
P. O. Dr. 790
Kinder, LA 70648
(337) 738-2568
Counsel for Defendants/Appellees:
Timothy J. Dempsey
Arizona Chemical Company, Inc.

Olivia S. Regard
Jones, Walker, Waechter, Poitevent,
Carrère & Denègre, L.L.P.
600 Jefferson, Suite 1600
P.O. Box 3408
Lafayette, LA 70502-3408
(337) 262-9000
Counsel for Defendants/Appellees:
Arizona Chemical Company, Inc.
Timothy J. Dempsey

DECUIR, Judge.

Edna Miller and her son, Bruce Miller, sued Arizona Chemical Co., Inc. for

personal injuries following the release of a chemical vapor into the air. Arizona

chemical admitted liability, and the issues of causation and damages went to trial. A

jury verdict was returned in favor of Edna Miller, awarding her $12,500.00 in

damages; regarding the claims of Bruce Miller, a verdict in favor of Arizona

Chemical was returned. Both plaintiffs have appealed, urging error in the denial of

their motions for new trial and JNOV and in the award of damages.

The record reveals the following facts: Shortly after 1:30 p.m. on March 8,

2000, a pressurized tank at the Arizona Chemical manufacturing plant in Oakdale,

Louisiana overheated, resulting in the short-term release of a chemical vapor into the

air. The tank, which had a safety shut-off valve that failed, contained a heat transfer

fluid called XCeltherm MK-1, a substance comprised of 27% biphenyl and 73%

phenyl oxide. As the vapor was released into the air, the wind took it toward the

neighborhood where Mrs. Miller resides. The release was brought under control

within minutes, and at 1:55 p.m., an all clear signal was sounded.

Immediately upon the chemical release and in compliance with standard safety

procedures, Arizona Chemical evacuated its thirty-three employees, alerted both the

media and nearby hospitals, and notified all necessary state agencies that a release

had occurred. Regarding medical care, the local emergency room was provided with

a description of the chemical to assist the hospital with treating anyone who sought

medical care as a result of the release. Including Mrs. Miller, five people visited the

emergency room, and Arizona Chemical paid all of those expenses. Arizona

Chemical also covered cleaning expenses for anyone who had a chemical residue

inside or on the outside of his home or car.

Mrs. Miller, then sixty-eight years old, was inside her home at the time of the

incident at issue. Mr. Miller, forty-eight years old at the time, was at work as a

groundskeeper at the nearby high school. He heard about the incident on the radio

and immediately left work to see about his mother. When he arrived at her house, she

was outside, nauseated, but about to leave the area. Mr. Miller helped her into her car

and watched as she drove away. He then proceeded inside the house for about ten

minutes where he checked on things, had a glass of water, washed his face, then left.

He testified that while he was in her house, his eyes and throat were burning, and he

was short of breath. Later that day, Mrs. Miller sought treatment at the local

emergency room for complaints of palpitations, shortness of breath, and nausea. The

hospital records reflect she no longer was suffering from the irritating effects of the

chemical exposure and she was discharged. While Mr. Miller did not seek medical

care at the time, he recalled that within five hours of his exposure to the chemical

vapor, a rash developed on his hands. Mr. Miller, however, has suffered with skin

rashes many times both before and after the chemical exposure. Additionally, both

plaintiffs suffer from diabetes, hypertension, and other chronic ailments.

At the time of trial in February of 2009, both plaintiffs complained of

continuing symptoms from the brief chemical exposure, lasting no more than ten

minutes, which they experienced nine years previously on March 8, 2000.

In this appeal, the plaintiffs first contend the trial court abused its discretion in

denying their request to depose, or examine in open court, Juror Number Two,

regarding his alleged failure to disclose relevant information during voir dire

proceedings. This allegation is based on a note received by the court, after trial, from

another juror who expressed her disagreement with the verdict and claimed that Juror

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Number Two made disparaging comments during deliberations about Mr. Miller’s

brother and said that he had once been to Mrs. Miller’s house. In response to this

communication from a juror, the plaintiffs sought to depose Juror Number Two.

The trial court denied the request but informed the plaintiffs that Juror Number

Two could be subpoenaed to testify at the hearing on the motion for new trial if they

laid a proper foundation and proved a factual basis to warrant questioning the juror.

The plaintiffs failed to meet this burden, offering no facts to support the suggestion

that Juror Number Two was biased or had lied during voir dire. They also failed to

subpoena Juror Number Two. Accordingly, the trial court denied the motion for new

trial based on juror misconduct.

Our review of the record reveals no error in the trial court’s decision. The trial

court based its refusal to allow the taking of deposition testimony from Juror Number

Two on the Jury Shield Law, La. C.Evid. Art. 606(B), which provides in pertinent

part:

Upon an inquiry into the validity of a verdict or indictment, a
juror may not testify as to any matter or statement occurring during the
course of the jury’s deliberations or to the effect of anything upon his or
any other juror’s mind or emotions as influencing him to assent to or
dissent from the verdict or indictment or concerning his mental
processes in connection therewith[.]

At the subsequent hearing on their motion for new trial, the plaintiffs did not

subpoena Juror Number Two, and they failed to present a factual basis sufficient to

prove allegations of juror misconduct or a juror’s untruthfulness during voir dire.

Furthermore, the trial court specifically noted, “[e]ven if the allegations had been

proved by the movers, the Court does not find that what was alleged to have been

done by Juror Number Two was of such a grievous nature that it precluded the

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impartial administration of justice.” The record reveals no manifest error in these

conclusions.

The plaintiffs next contend the trial court erred in failing to grant their motion

for judgment notwithstanding the verdict with regard to Bruce Miller’s claim. Our

review of the evidence discloses no error in this decision. The record is replete with

evidence of Mr. Miller’s longstanding chronic medical problems, his history of rashes

which were later found to be associated with his use of Celebrex, and his longtime

smoking habit. While Mr. Miller’s treating family practitioner testified that his

breathing problems, rashes, and other symptoms were related to the chemical

exposure, the physician did not even know, until the day of trial, what chemical the

Millers were exposed to, much less the type of ailments that particular substance

could cause. The doctor testified that the temporal relationship between Mr. Miller’s

symptoms and the chemical release was the basis for his opinion that the two are

related. In contrast, the defendants presented the opinions of expert toxicologists who

testified that Mr. Miller’s continuing symptoms could not have been caused by the

brief transient exposure to XCeltherm vapor on March 8, 2000.

For the same reasons, we also find no merit to the plaintiffs’ contention that

Mrs. Miller is entitled to an increase in damages and Mr. Miller is entitled to an

award of damages. Their treating physician’s testimony was completely discredited

by the testimony of the defendants’ toxicologists, and their attempts to link chronic

unrelated health issues to this one-time, momentary inhalation event were

exaggerated and not well-founded. We find no manifest error in the factual

conclusion that the damages awarded to Mrs. Miller were commensurate with the

injuries actually proved to be related to the chemical release. We also find no error

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in the denial of Mr. Miller’s claim for damages as the record reflects he did not meet

his burden of proof.

For the above and foregoing reasons, the judgment of the trial court is affirmed.

Costs of this appeal are assessed to the plaintiffs.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3, Uniform Rules,
Courts of Appeal.

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